Georgia Supreme Court Holds Message Board Comments Are Not Stalking

Chan v. Ellis, No. S14A1652, 2015 WL 1393410 (Ga. Mar. 27, 2015).

Opinion hosted by Justia.

The Georgia Supreme Court, in Chan v. Ellis, clarified the meaning of the word “contact” as it applies to Georgia’s stalking law, OCGA § 16-5-90 et seq., holding that the defendant’s publication of messages about the plaintiff on an online message board did not amount to prohibited contact under the statute. Chan, 2015 WL 1393410, at *1. According to the court’s opinion, the defendant, Matthew Chan, runs a website on which he and others criticize “copyright enforcement practices that they consider predatory.” Id. Chan and fellow commentators published on the website’s message board numerous posts about the plaintiff, a poet named Linda Ellis, criticizing Ellis’s aggressive pursuit of infringers of her poetry’s copyright. Id. The court described some of these posts as “mean-spirited, . . . distasteful and crude,” and some of the commentators threatened to publish personal information about Ellis and her family. Id. Ellis discovered the inflammatory comments, and filed a restraining order against Chan under the Georgia stalking law. Id.

JOLT Digest, in a prior post, details the procedural background of the case. The Technology & Marketing Law Blog and the Washington Post provide additional reporting and commentary on the case.

The Georgia court, focusing on the “common and customary usage[]” of the word “contact” in the statute, id., reasoned that for contact to occur, it “is essential that the communication be directed specifically to that person,” id. at *2. The court found that although the comments may have been about Ellis, they were not directed at her. Id. In reaching its conclusion, the court cited Marks v. State, 703 S.E.2d 379 (Ga. Ct. App. 2010). Marks held that libelous online posts made by the defendant about his ex-wife, which the ex-wife discovered only after searching for her name on the Internet, did not amount to communication with the ex-wife and did not violate an existing no-contact order. Chan, 2015 WL 1393410, at *2 (citing Marks, 703 S.E.2d at 381).

The Georgia court allowed that a few of the comments, especially those addressed to Ellis in the second person, may have been directed at her. Id. at *3. However, the court further found that because Ellis exercised “her choice to discover the content of the website” by visiting and registering herself as a commentator on the website, she consented to any contact Chan may have made. Id. Accordingly, the Georgia stalking law, which only prohibits contact without the recipient’s consent, did not apply. Id.

Chan’s website, ExtortionLetterInfo (ELI), describes itself as “dedicated to reporting information and providing commentary on Getty Images (and other stock photo) Settlement Demand Letters,” and notes other complaints about alleged “copyright trolls.” Chan, posting to ELI, praised the Georgia court’s decision, highlighting that the court agreed with his contention that “Ms. Ellis chose to visit ELI and voluntarily read commentaries about her.” Chan also criticized the implication that comments written by members of the site could be attributed to him. Ars Technica, in an earlier article on the case, similarly suggested that under section 230 of the Communications Decency Act, 47 U.S.C. § 230, Chan could not be liable as the website’s operator for posts made by others. However, the Georgia court left that issue unresolved, ruling solely on the definition of the word “contact,” and did not address the safe-harbor implications of section 230. Chan, 2015 WL 1393410, at *1 n.2.

Chan’s position was defended by prominent legal scholar Eugene Volokh. Volokh, writing for his column in the Washington Post, outlined the argument that he provided in an amicus brief to the Georgia court. Volokh reasoned that restricting speech about, but not directed to, a person would violate the First Amendment. The Georgia court declined to address this First Amendment argument, although it noted that it “may have some merit.” Id.

Other commentators seem to generally agree with the decision. Venkat Balasubramani, writing for the Technology & Marketing Law Blog, strongly agreed with the decision, characterizing Chan in a sympathetic light as someone “forced to spend resources fighting what was a blatant attempt to squelch unflattering commentary.” Balasubramani also called for a national anti-SLAPP statute that would help prevent similar cases from falling “through the cracks, either due to lack of resources or counsel.”